278 A.D. 450 | N.Y. App. Div. | 1951
This appeal involves a construction of the will of Celestine A. Gardner made in 1943 as an exercise of her power of appointment over assets in a trust created by her under an indenture in 1891. The final order here under review judicially settles the accounts of the successor trustee under the indenture in such manner as to dispose of none of the trust assets as directed in the will except by the valid portions of the residuary clause. At the time of testatrix’ death, her individual estate amounted to approximately $5,000 and a house in Florida; it was even smaller when her will was executed. The will contains a specific devise of the house in Florida to one of her daughters, plus general legacies of about $50,000 to or for the benefit of her husband, children and grandchildren, and attempts to dispose of the residuary estate in various trusts, some of which have been held to be invalid (Matter of Gardner, 272 App. Div. 1064). The preamble of the will recites that
The disparity between her individual estate and her testamentary gifts was so great, both when her will was executed and when she died, that she must have intended that her bequests should be met out of the assets of the inter vivos trust under her power of appointment.
There could hardly be question concerning this, except for the mention of this power of appointment in the residuary clause in the will. The residuary clause contained in paragraph Twelfth disposes of “ All the rest, residue and remainder of my estate, both real and personal of whatsoever kind and nature, and wheresoever situated, of which I may die seized or possessed or entitled at time of my decease, including all the property which I may have a power of disposition of, or which may or might pass under the terms of my Will, and the property which I have the power of disposing of under and by virtue of the trust deed or deed of appointment made or to be made by me under a certain deed of trust heretofore executed by me on or about June 22nd, 1891, and the confirmation thereof dated August 8th, 1899 ”.
It could hardly have been the purpose of testatrix by this clause, as has been held at Special Term, to give all of the assets of her inter vivos trust to her residuary legatees, thus allowing her prior bequests to fail. A residuary clause, by its very nature, is ordinarily intended to dispose of what is left after making provision for prior gifts. The prior bequests, in this instance, consisted of enough in trust to produce an income of $1,200 per annum to be paid to. her husband during his lifetime, and $11,000 in cash to children and grandchildren, $300 to the cemetery and $500 to an intimate friend. Only the “ rest, residue and remainder ” after making these gifts was to pass to her residuary legatees under the twelfth paragraph. This clearly referred to the rest, residue and remainder of the corpus pf her inter vivos trust after payment of prior legacies, as well as to the insignificant amount of personal property to
If all of the testamentary trusts were valid that testatrix attempted to create by the residuary clause in her will, there is little likelihood that her will would have been construed so as to result in the failure of prior bequests by the application of the entire corpus of the inter vivos trust to the gifts under the residuary clause. For the purpose of testing the validity of her testamentary disposition of assets of the inter vivos trust, her will and the trust indenture have to be read together as though they were one instrument (Bishop v. Bishop, 257 N. Y. 40, 51). Consequently, suspensions of the power of alienation by the will during the lives of persons not in being in 1891 when the inter vivos trust was created, have been held to be invalid in passing assets of the trust estate. Some portions of the residuary clause in the will have also been held to be invalid with respect to assets of either estate, inasmuch as they purport to create trusts for the duration of more than two lives in being even with regard to testatrix’ individual property. (Matter of Gardner, 272 App. Div. 1064, supra.) Although it is stated in the memorandum decision by the Second Department in that case that “ Testatrix died intestate as of her death with respect to assets of either estate which remain undisposed of because of the falling in of the invalid trusts,” the decision does not purport to go beyond a determination of invalidity of those portions of the will. That decision does not determine whether assets of the 1891 trust estate which are not legally disposed of under the will pass by intestacy as part of testatrix’ individual estate, or pursuant to direction in the 1891 trust indenture (in default of valid exercise of the power) to “the heirs at law and next of kin ’ ’ of the settlor 6 ‘ in the same manner and in the same proportions as if she the said party of the first part had died seized and possessed thereof and intestate.”
The 1891 trust agreement has been held to have created a remainder rather than a reversion in testatrix’ distributees (Matter of Burchell, 299 N. Y. 351).
We conclude that the entire will of Celestine A. Gardner, and not merely the residuary clause, wrought an exercise of the power of appointment contained in the 1891 trust agreement insofar as necessary to carry into effect the valid dispositive
The final order appealed from should be modified in accordance with this opinion, and as so modified affirmed, with costs to appellant and respondents payable out of the fund. *
Dore and Callahan, JJ., concur; Peck, P. J., and Shientag, J., dissent and vote to affirm.
Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to the appellant and the respondents payable out of the fund. Settle order on notice.